Effective next Tuesday, October 9, 2018, New York employers must adopt and issue to current employees an anti-sexual harassment policy that complies with the requirements set forth in Section 201-g of the New York State Labor Law (“Law”). Employers also must provide the policy to all new employees hired after that date.
As we previously reported, on October 1, 2018, New York State released its final sexual harassment guidance and resources, including a model sexual harassment policy. Along with this model policy, the State issued Frequently Asked Questions (“FAQs”), which provide additional information about the anti-sexual harassment policy required by the Law.
New York employers may either adopt the State’s model policy or establish a sexual harassment prevention policy that meets or exceeds the minimum standards provided by the State’s model policy.
According to the Law, the policy must:
- prohibit sexual harassment consistent with guidance issued by the New York State Department of Labor in consultation with the Division of Human Rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
- include, but not be limited to, information concerning the federal and state statutory provisions regarding sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
- include a standard complaint form;
- include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
- inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
- clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
- clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding involving sexual harassment is unlawful.
The State’s Combating Sexual Harassment in the Workplace website provides an optional sexual harassment poster, which provides information about where the policy can be found. The State also issued a toolkit, which explains how employers can comply with the policy and training requirements.
The FAQs pertaining to the anti-sexual harassment policy:
- explain that a sexual harassment policy can be provided to employees in writing or electronically, and that if the policy is made available on a work computer, employees must be able to print a copy for their own records;
- state that if an employer already has established investigative procedures which are similar, but not identical, to those provided in the model policy, the employer may deviate from these specific requirements and remain compliant with the Law, but in any event the investigative procedures should be outlined in the policy;
- suggest that the sexual harassment policy should be provided to new hires “prior to commencing work,” which means that employers should take care to distribute the policy to new hires during or prior to onboarding;
- encourage (but do not require) employers to supply a policy and training to anyone providing services in the workplace, including independent contractors, vendors, or consultants;
- note that the complaint form need not be included directly in the policy, but employers should be clear about where the form may be found, for example, on a company’s internal website; and
- strongly encourage employers to provide a policy in the language spoken by an employee.
What New York Employers Should Do Now
- Review and revise, as necessary, policies regarding sexual harassment in the workplace to conform to the requirements of the Law pertaining to sexual harassment policies, and include a complaint form.
- Translate policies, and provide training in an employee’s primary language(s).
- Provide the revised policy and complaint form to all employees by October 9, 2018.
- Provide the revised policy to new employees prior to commencing work.
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 While the FAQs suggest in several places that the policy should be “posted,” this appears to be a recommendation, and not a requirement. An employer may, therefore, wish to make a link to the policy available on any company intranet site or post this poster, which directs employees (and others performing work at the employer’s workplace) to where the policy may be found. Additionally, an employer may wish to provide the policy to non-employees providing services in the workplace.
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